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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
TECHNOLOGY INFORMATION ) EB-03-IH-0705
FOUNDATION, LTD. ) Facility ID No. 131898
)
Licensee of Low Power )
Noncommercial Educational )
Station WLFK-LP, Eau Claire, )
Wisconsin
MEMORANDUM OPINION AND ORDER
Adopted: November 9, 2004 Released:
November 9, 2004
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we admonish
Technology Information Foundation, Ltd. (``Technology''),
licensee of low power noncommercial educational FM Station
WLFK-LP, Eau Claire, Wisconsin, for broadcasting
advertisements in violation of section 399B of the
Communications Act of 1934, as amended (the ``Act''),1 and
section 73.503(d) of the Commission's rules.2 We have
carefully reviewed the record, including Technology's
response, and conclude that the licensee has violated the
pertinent statutory and Commission underwriting rule
provisions, in addition to having failed to submit required
information in response to a Commission inquiry. While we
believe that no monetary sanction is warranted at this time,
based upon the entire circumstances of this case, we find
that an admonishment is necessary to redress these statutory
and rule violations. Moreover, we believe that it is
appropriate to advise Technology of our specific concerns so
that i9t may avoid future violations.
II. BACKGROUND
2. In response to a confidential complaint, we
inquired of the licensee concerning its underwriting
announcements. Technology responded to our August 24, 2004,
inquiry3 by its submission dated September 7, 2004.4 In its
response, Technology acknowledges that it broadcast the
inquired of underwriting announcements during the period
November 11 through 18, 2003, over Station WLFK-LP.5
Technology represents, however, that three of the five
announcements at issue, those on behalf of The Barstow Café,
Advanced Audio Systems, and Union Records/Tru Trax, were
broadcast ``without remuneration or promise of future
remuneration,'' and should therefore be deemed compliant
with section 399B of the Act. 6 Technology represents that,
since becoming aware of the complaint, it has ``pulled all
current sponsorship announcements for extensive review,''7
in an attempt to better conform its station operation to the
Commission rules and policies regarding underwriting
announcements.
III. DISCUSSION
3. Advertisements are defined by the Act as program
material broadcast "in exchange for any remuneration" and
intended to "promote any service, facility, or product" of
for-profit entities.8 As the Commission has long held,
noncommercial educational stations may not broadcast
advertisements.9 Although the Commission has held that
contributors of funds to noncommercial stations may receive
on-air acknowledgements, such acknowledgements may be made
for identification purposes only, and should not promote the
contributors' products, services, or business.10
4. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or
lease.11 At the same time, however, the Commission has
acknowledged that it is at times difficult to distinguish
between announcements that promote versus those which merely
identify the underwriter. Consequently, it expects only
that licensees exercise reasonable, good-faith judgment in
this area.12
5. The key facts in this case are not in dispute.
Technology admits that Station WLFK-LP broadcast the
announcements described in our letter of inquiry and set
forth in the attached transcript; that the sponsors are for-
profit entities; and that, with the exception of the Barstow
Café, Advanced Audio Systems, and Union Records/Tru Trax
announcements, it received consideration for airing the
messages. Technology asserts that it has since taken steps
to ensure underwriting rule compliance by revising the
station's donor acknowledgment policy and practice.13
6. We find that the announcements aired by Technology
on behalf of Northern Safari Army Navy Store and Westside
Cycle, for which Technology received remuneration, exceed
the bounds of what is permissible under section 399B of the
Act, and the Commission's pertinent rules and policies, in
light of the ``good-faith'' discretion afforded licensees
under Xavier, supra. Specifically, the announcements seek
to promote their respective underwriters through comparative
and qualitative descriptions, and references that seek to
induce patronage, and are thus prohibited. Notwithstanding
this substantive finding, we find that a monetary forfeiture
is not necessary to redress the statutory and rule
violations at issue. This disposition takes into account
the full circumstances of this case, including the absence
of evidence undermining Technology's claim of ``good-faith''
efforts to comply as well as Technology's blemish-free
enforcement record.
7. With regard to Technology's underwriting
practices, we believe that the licensee should review its
promise to air ``pre-recorded sixty-second (maximum)
announcements that give [its] listeners basic information
[about the underwriter].''14 Although the Commission has
not imposed quantitative guidelines on the length of
underwriting announcements, it has noted that the longer
they are, the more promotional they tend to be.15 In light
of the excessive length of the problematic announcements
involved in this case, which range from 36 to 49 seconds in
duration, Technology should carefully examine and then
reform its current practices.
8. We further admonish Technology for its inadequate
response to the Commission inquiry. First, Technology
failed to respond to our specific question directing it to
explain the meaning that it ascribed to the promise made to
station sponsors that they would receive ``favorable mention
on our morning show and station breaks.''16 Technology
instead represented that, although its apparent promise of
promotional mention made to sponsors had since been
withdrawn, ``the meaning of the aforementioned phrase will
[not] be explained [until] a later response[,]'' which the
licensee never provided.17 The Commission has consistently
held that a party cannot pick and choose which portions of
Commission directives in a Bureau inquiry letter require
response, or unilaterally determine when and how it should
respond.18 Again, in light of the totality of the
circumstances, we do not believe that imposition of a
monetary forfeiture for Technology's actions is warranted.
We caution Technology and other licensees that future
violations or different circumstances may result in
substantial forfeiture penalties.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that Technology
Information Foundation, Ltd., licensee of low power
noncommercial educational FM Station WLFK-LP, Eau Claire,
Wisconsin, IS ADMONISHED for broadcasting advertisements in
violation of section 399B of the Act, 47 U.S.C. § 399b, and
section 73.503(d) of the Commission's rules, 47 C.F.R. §
73.503(d), and for failing to submit required information in
response to a Commission inquiry.
10. IT IS FURTHER ORDERED that copies of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Technology Information
Foundation, Ltd., 800 Wisconsin Street, Mailbox 108, Eau
Claire, Wisconsin 54703, and to counsel for the complainant,
Todd M. Stansbury, Esq., Wiley, Rein & Fielding LLP, 1776 K
Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigation & Hearings
Division Enforcement Bureau
ATTACHMENT
Transcript of Prohibited Underwriting Announcements Aired on
LPFM Station WLFK-LP, Eau Claire, Wisconsin, on November 11,
17 and 18, 2003:
Northern Safari Army Navy Store (36 seconds)
Announcer: ``Hey, if you need anything for the great
outdoors, our new sponsor, Northern Safari Army Navy, can
help you out. They carry camping supplies, backpacks,
tents, all season clothing, which is, by the way, where I
buy all my clothes, military surplus, knives, and paintball;
that's right, paintball. How much cooler can you get than
that? Basically, it's all the cool stuff you need to have
fun outside. Northern Safari is located at 1610 South
Hastings Way, and if you want to see if they have something
in stock, you can give them a call at 833-1942. Northern
Safari is where I shop, and I think it's cool as hell.''
Westside Cycle (49 seconds)
Male Voice: ``Hi, this is Chad, owner of Westside Cycle.
People hate being told by the bigger dealerships that their
ride is too damn old to be worked on. Westside Cycle will
work on any motorcycle, ATV or snowmobile, from regular
scheduled maintenance to complete rebuilds, custom paint,
even hand-built choppers. I've been a mechanic for over 12
years so your ride is in good hands with me. In addition to
service, we sell used motorcycles, and we'll match any
magazine deal on parts or accessories and order them online
for next-day delivery. So if you like dealing with a small
shop or you get to talk to the owner, then Westside Cycle is
for you. We're located at 1620 Westgate Road, off of
Cameron Street in Eau Claire, or you can reach us by phone
at 832-8300.''
Female Voice: ``Westside Cycle: Keeping the breeze between
your knees.''
_________________________
1 47 U.S.C. § 399b.
2 47 C.F.R. § 73.503(d) is a noncommercial broadcast rule
applicable to LPFM licensees through incorporation by §
73.801. 47 C.F.R. § 73.503(d) allows noncommercial stations
to air announcements acknowledging underwriter or sponsor
donations, but prohibits the broadcast of paid announcements
that promote for-profit underwriters or sponsors.
3 See Letter of William H. Davenport, Chief, Investigations
and Hearings Division, Enforcement Bureau, to Technology
Information Foundation, dated August 24, 2004 (``LOI'').
4 See Letter of Wolf Snider, President, Technology
Information Foundation, Ltd., to Kenneth M. Scheibel, Jr.,
Investigations and Hearings Division, Enforcement Bureau,
dated September 7, 2004 (``Response'').
5 Response at 3.
6 Id. at 1. A written transcript of the five announcements
was attached to the LOI as Exhibits A-E.
7 Response at 1.
8 47 U.S.C. §399b(a).
9 See In the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations ,
Public Notice (1986), republished, 7 FCC Rcd 827 (1992)
(``Public Notice'').
10
Id.
11
Id.
12 See Xavier University, Memorandum Opinion and Order, 5
FCC Rcd 4920 (1990).
13 Response at 1.
14 Response at Exhibit C.
15 See Board of Education of New York (WNYE-TV), Letter of
Caution, 7 FCC Rcd 6864 (MMB 1992).
16
Response at 5.
17 Id.
18 See, e.g. , American Family Association, Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 13750 (EB
2004), citing SBC Communications, Inc., Forfeiture Order, 17
FCC Rcd 7589 (2002); Radio Moultrie, Inc., Order to Show
Cause and Notice of Opportunity for Hearing, 17 FCC Rcd
24304 (2002); World Communications Satellite Systems, Inc.,
Forfeiture Order, 19 FCC Rcd 2718 (EB 2004).